New Hurdles Imposed for Medicaid Applicants in New York State

New York state recently enacted legislation, and declined to moderate existing legislation, that makes accessing the state’s Medicaid program more difficult and complicated. 

I. The Consumer Directed Personal Assistance Program (“CDPAP”) will undergo major changes. 

Currently over 600 companies act as Fiscal Intermediaries (FIs) for the CDPAP program.  These FIs assist people who hire Personal Assistants (“PAs”) through the CDPAP program, by handling payroll and benefits.  FIs sometimes also help consumers find and train Personal Assistants.  These intermediaries are often small, local companies.  FIs are under contract with, and are paid by, Medicaid Long Term Care (“MLTC”) plans, mainstream managed care plans, and local Departments of Social Services that authorize CDPAP services.

Now the NYS Department of Health will be required to contract with a single Fiscal Intermediary – and that intermediary must already be operating in another state as a statewide FI.  That single FI will subcontract with a small number of existing FI programs.  By April 1, 2025, all 200,000 CDPAP consumers and their PAs will be transitioned to the new SINGLE FI or one of their few subcontractors, and ALL other FIs must stop operating.

That means that whichever FI is chosen, and its few subcontractors, are likely not to have a local presence in many of the parts of the state, and consumers who hire Personal Assistants will be dealing with a huge corporation rather than a small, responsive service provider.  This will eliminate almost all choice, as well as competition, from the current 600 providers.

II. CDPAP Personal Assistants may have new training requirements

The new law authorizes the Department of Health to adopt regulations “to carry out the objectives of the program including … training requirements for PAs.”  Currently, the consumer or their representative trains the PAs, and no outside training is required.  CDPAP PAs are then able to perform numerous critical tasks that long-term care aides are not permitted to perform.  These tasks include assisting patients with taking medications, injecting insulin, administering oxygen, and other duties that would otherwise require the costly services of a nurse. 

If additional training is required, this obligation will discourage potential candidates from becoming PAs.  These important workers are already in short supply: fewer PAs will mean it will take longer – or it might be impossible – to find an assistant.

III. Cuts to Medicaid that are still scheduled to occur:

The 30-month “look back” and transfer penalty for Community Medicaid services, which was enacted but which was delayed due to COVID, was not repealed.  This measure is scheduled to be implemented in 2025.  Implementation will delay or effectively deny home care services that are crucial to enable people to remain in their homes as long as possible.

This complicated change will be a nightmare to implement.  The look back will impose a penalty period for transfers made in the 30 months prior to a person applying for Community Medicaid services (these services include paying for some Assisted Living residences).  There is currently no look back.

Currently, disabled people who require assistance with two Activities of Daily Living (“ADLs”) qualify for Community Medicaid services (if financial eligibility is achieved).  Implementation of this measure will require that people need assistance with three ADLs before they are eligible. 

This increased requirement will make it far more difficult for seniors in declining health to access Medicaid services.  In addition, the New York Legal Assistance Group states that this “will deny Medicaid home care illegally to Those With Vision Impairments, Intellectual & Developmental disabilities, Traumatic Brain Injuries, and many other disabilities.”  This requirement will go into effect in Fall 2024 if not repealed.

The New York State Bar Association, New York Legal Assistance Group, and the National Association of Elder Law Attorneys are all fighting to repeal this harmful legislation.  Our firm will support their efforts.

Ongoing changes to New York State’s long-term care regulations mean that it is more important than ever for anyone over 65, or earlier if you have health issues, to consult with an experienced Elder Law attorney.  The sooner you take action, the more long-term care planning can help you.  During a consultation with our firm, our attorney will explore your situation, thoroughly explain your options, and enable you to decide for yourself what plan makes the most sense for you.  

The most effective planning occurs before you have a need for long-term care, but planning can still have enormous benefits even if undertaken later.  Don’t hesitate to call – a consultation will provide you with important information and can give you priceless peace of mind.

More information on all of the CDPAP changes is available at this link: Drastic CDPAP Changes and other Medicaid Outcomes of Final NYS 24-25 Budget - New York Health Access (

6 Critical Issues upon Discharge from a Hospital or Rehab

If you or your loved one is being discharged from a hospital or rehab facility, either to a home or to assisted living, focusing on the following six issues can be critical:

  1. What temporary or ongoing assistance will be needed (home aide, meals, housekeeping)
  2. How to remain healthy (proper medication management)
  3. How to remain safe (a home safety plan)
  4. Where will you find the aides you need, and who will manage them
  5. How to manage care – family / friends or a professional Care Manager
  6. A key, but often neglected, aspect of care is: How will you pay for it? Medicare will not pay for long-term care, and unless you are very wealthy, the cost of care can wipe out your entire life’s savings.

(Note:  Discharge to a nursing home is not discussed in this article) 

This checklist will give you a good starting point to keep yourself or your loved one happy, safe, and healthy as long as possible.  We also want to emphasize that you CAN protect yourself from financial disaster when health care costs start to climb.

When You Are Discharged, What Issues are Most Pressing?

Issue #1:  Help in the home, assisted living, or help in an assisted living

People coming from a hospital or rehab may need ongoing short or long-term care.  The institution’s designated liaison (usually a social worker) will recommend the appropriate level of care, based on the patient’s needs.  The social worker will also give a list of providers, such as assisted living residences or medical resources, that may be necessary for the patient’s care.    

 If the patient can go home, but needs more care, they may need to find an aide and/or access additional services.  Depending on the patient, specialty care physicians, visiting nurses, or other medical care may be necessary. 

If the discharged person needs an aide, finding one who is compatible will be a focus.  In the case of assisted living, the person’s mental capacity, physical state, and proximity to friends or family will all affect which facility is best suited for them, and how well they adjust to a new living situation.  Most assisted livings permit personal aides in their facilities.  Medicaid may cover home health aide services in an assisted living.

Issue #2:  Medication Management            

This is a thorny issue.  Home health aides are not permitted to administer medication.  They can put pills in a cup, place the cup on a table, and tell the person that “it’s time to take your pills,” but they can’t administer the pills directly.  For a person with dementia, or who has dressings that need to be changed, or physical procedures they can’t manage themselves, a home aide may not be enough.

Hiring a nurse to show up and give medications, or help with another physical need, is expensive, but it may be necessary.  One way to provide families with assistance instead of hiring a nurse is through the Consumer Directed Personal Assistance Program (“CDPAP”).  With CDPAP, aides hired by the family can be trained by the family, and then have fewer limitations on the care they are permitted to provide.

Issue #3:  A Home Safety Plan

Throw rugs, sharp corners, the path to the bathroom, poorly placed furniture, poor lighting – all of these and more can be a minefield of dangerous conditions, if you’re physically or mentally compromised. Fortunately, there are many printed and online resources and services that can help you create a safe living environment.

Issue #4:   Finding the Right Assistance

There are many excellent home health agencies.  The one the hospital recommends to you may be great – or it may not.  You may be happy with the agency, but if you are not, you can change.

It may take some effort to find an aide you are happy with – but that may not be the fault of the agency.  If you are unhappy with how the agency operates or manages your situation, find another agency.  Our firm’s Director of Client Care and Advocacy can give you a referral if you wish.

You may also choose to hire your own caregiver through the CDPAP program.  This choice requires more of your time and involvement than if you hire an agency, but will also give you added flexibility.

  If you decide to hire and pay your aide privately, we strongly advise against paying aides “off the books.”  There are a variety of serious issues and liabilities that can arise for the employer who does that.

Issue #5:   Does it Make Sense to Hire a Care Manager

If it is difficult for you to oversee the care, or if you don’t live nearby, you may wish to hire a Geriatric Care Manager (“GCM,” also sometimes called an Aging Life Care Manager).  A GCM can oversee the aides, check in with the patient, and generally manage the process.  The added cost needs to be weighed against the great peace of mind such a service can provide.

Issue #6:  How Will You Pay for the Care

Private pay aides currently cost $35-$40 an hour or more.   A hypothetical example for someone “who doesn’t need much care”:   6 hours a day, 5 days a week at $35 per hour (meaning all weekend care is left to family or friends) adds up to over $1,000 per week, almost $55,000 per year.  Double or triple that amount for people who need more help, or who need nursing care, or both.

No wonder people have anxiety attacks when they start paying for care.  They realize that even more expenses are on the horizon, and they see their life’s savings being depleted.  In the case of a married couple, they may have enough money to care for one spouse, but the surviving spouse may be left in serious financial peril.  If they don’t plan, most people literally face financial ruin. 

People are often told, “You have to use up all your money before you can qualify for Medicaid.  It’s called the spend down.”  This is not true, particularly in New York. 

Long-term care planning can allow you to remain in your home and maintain your lifestyle without using up almost every dollar of your savings, and the equity in your home, on your health care.  Proven legal strategies can allow you to protect yourself, your family, and your assets, and still access high quality health care.

The Bottom Line:

Our firm seeks to educate people about the possibilities available to them in New York.  If you own a home, have some savings, or have income from a pension or retirement plan in addition to Social Security, Elder Law planning can very likely result in huge benefits for your lifestyle, your savings, and your peace of mind.

Accessing care is complicated and stressful.  Lamson & Cutner created the position of Director of Client Care and Advocacy to enable us to assist our Elder Law and Estate Planning clients who need care services.  Our Director works with our clients to help them maximize the assistance they receive through Medicare and Medicaid.

If you or a loved one is in the hospital or a rehab facility, and have not yet done long-term care planning, discharge planning should kick-start your focus on this crucial aspect of your, or their, future.

We encourage you to read more on our website about Elder Law planning and Estate Planning, and to take action now.  Your relief and peace of mind from knowing you are protected will be well worth the effort.

Finalized New York State 2024 Medicaid Limits

The New York Medicaid limits and thresholds for 2024 have been finalized! The NY Medicaid eligibility limits for income and "resources" (assets) are tied to the Federal Poverty Level ("FPL"). 2024 FPL levels were announced some time ago, and New York Medicaid finally confirmed the New York levels yesterday afternoon.

Below is our 2024 Medicaid Quick Reference Chart.

You can save and print the chart below, or a printable version of the chart may be found here.

The Corporate Transparency Act

Attention clients, former clients, and blog readers who own corporations, LLCs, or who have an interest in a trust that owns an LLC or corporation: major changes have been enacted through the Corporate Transparency Act that may affect you. This blog provides a brief description of the Corporate Transparency Act, its requirements, and what the consequences are for those who fail to comply.


Which companies are required to report?

Companies that are required to report beneficial owner interests are called reporting companies. Reporting companies include corporations or LLCs registered to do business in the United States. Reporting companies must report information about their beneficial owners to FinCEN, a bureau of the U.S. Department of the Treasury.

Who is a Beneficial Owner?

A beneficial owner is any individual who, directly or indirectly, exercises substantial control over a reporting company, or owns or controls at least 25 percent of the ownership interests of a reporting company. For a trust that holds an ownership interest in a reporting company, the grantor, the trustee, or even the beneficiary may be considered the beneficial owner.

What Information Needs to be Reported to FinCEN?

Beneficial Owner:

  1. Full legal name
  2. Date of birth
  3. Complete current address
  4. Unique identifying number and issuing jurisdiction from one of the following non-expired documents (must include an image of the document):
    1. U.S. Passport
    1. State driver's license
    1. Identification document issued by a state, local government, or tribe
    1. Foreign passport (if the beneficial owner has none of the above)

When Must the Report be Filed?

If the reporting company was created or registered to do business before January 1, 2024, the company has until January 1, 2025, to file its initial report.

If the reporting company is created or registered on or after January 1, 2024, and before January 1, 2025, the company will have 90 calendar days to file its initial report after receiving actual or public notice that the company’s creation or registration is effective.

Failure to Comply:

The willful failure to report complete or updated beneficial ownership information to FinCEN, or the willful provision of or attempt to provide false or fraudulent beneficial ownership information may include civil penalties of up to $500 per day the violation continues, or criminal penalties of up to two years in prison and/or a fine of up to $10,000.   

Lamson & Cutner, P.C. Can Help!

The requirements imposed by the Corporate Transparency Act can be difficult to navigate and there are severe consequences for those who fail to comply. If you own an LLC, a corporation, or have a trust that holds an ownership interest in one of these entities, our firm can help you stay compliant with this new federal law. Contact us today for a consultation!   

Medicare Open Enrollment Time is Here

Every year, people who are currently enrolled in a Medicare program have an opportunity to review their coverage and make changes without penalty during the Medicare Open Enrollment period.  There is much to consider when it comes to choosing a plan, and to deciding whether to make any changes.  

Open Enrollment runs from October 15th through December 7th in 2023, and the two contending choices are Original Medicare and Medicare Advantage.  For many, the choice will significantly affect the quality of their medical care, and it may also affect their quality of life.  Seniors need to understand the benefits and drawbacks of each option in order to make the best decision for their particular situation.

Important Note:  While it is relatively easy to switch from Original Medicare to Medicare Advantage, switching from Medicare Advantage to Original Medicare is more complicated.  In some states, if you switch from Medicare Advantage to Original Medicare, you may not be able to get all the coverage you would have had under Original Medicare parts A & B with a Medicare Supplement Insurance (“Medigap”) plan, if you had signed up as soon as you were eligible. 

Original Medicare

Original Medicare consists of Parts A and B—hospital insurance and medical insurance respectively. They cover most but not all costs.  Prescription drugs are not covered by Parts A or B, so most people join the Medicare drug plan, Part D, separately.  Many also choose to buy supplemental insurance, or Medigap, which different states title with letters such as G or F, for example. These supplemental insurance plans will help cover copays, tests, and other medical necessities not already covered by Parts A, B, or D.

What is the main appeal of Original Medicare?  It is accepted by almost all doctors, hospitals, and facilities, and is not limited to the providers in a particular network.  Beneficiaries are also afforded the ease of seeing specialists without needing a referral to get coverage.

What are the drawbacks?  Part B has a 20% coinsurance after meeting the deductible.  In addition, Part B and Part D come with monthly premiums.  While a supplemental insurance, or Medigap, policy can help pay for the 20% coinsurance and remaining costs, they too come with premiums, meaning that out-of-pocket costs can add up significantly depending on drugs, procedures, and frequency of care.

Medicare Advantage

The other Medicare option is Medicare Advantage, also known as Medicare Part C.  Medicare Advantage is a plan from a Medicare-approved private company, and usually includes services covered by Original Medicare Parts A, B, and D.  Part C plans often offer dental and vision coverage, and sometimes even your health club.   Unlike Original Medicare, there is a yearly limit on what beneficiaries will pay out-of-pocket per year for hospital and medical services.  Once the limit has been reached, beneficiaries will pay nothing for any additional hospital or medical services that year.

The appeal of Medicare Advantage is that it has lower premiums and fewer out-of-pocket costs.  The multiple parts of Original Medicare are bundled into one, and depending on the services needed, beneficiaries can save money, at least in the short term.  

The primary downside to Medicare Advantage is that beneficiaries are restricted to using the doctors, facilities, and service providers in their plan’s network only.  Buying a supplemental Medigap plan is not an option, and many services, drugs, and procedures will require waiting for approval before the plan covers them.  If beneficiaries want to see specialists or go to facilities outside of the network, the only option will be to pay out-of-pocket. 

Which one should I choose?

Original Medicare and Medicare Advantage offer healthcare solutions for individuals in different financial and medical situations.  The type of Medicare that individuals choose will vary according to each person’s financial means, medical needs, and the doctors and facilities available through the different programs.

In summary, with Original Medicare, beneficiaries have access to almost all providers and services, but incur higher monthly payments.  With Medicare Advantage, monthly payments will be lower, and medical costs will be lower as long as medical treatment, drugs, and supplies can be obtained within the beneficiary’s network.

People on Medicare Advantage risk increased costs and time delays, should they encounter a complicated or non-standard medical issue.  They could be denied care and have to jump through time-consuming hoops to get approval for treatment.   If they choose to pay out of pocket to obtain the medical care they want, or feel they need, the financial burden could end up being as high or higher than that of Original Medicare. 

It is imperative for prospective beneficiaries to review the costs of their prescriptions, which networks their doctors are in, and the cost of the benefits they are likely to need, before making a decision.  If the doctors you currently use and trust are part of a Medicare Advantage plan, this could be more cost-effective and more efficient for you.  If you prioritize choice and flexibility, and are willing and able to pay more for your insurance, you will likely prefer a plan under Original Medicare.

Hospice Care and Palliative Care are Not the Same

Hospice care is finally getting recognition as a meaningful way to live the rest of your life in the best manner possible, if you have a life-limiting condition.  Palliative care, however, is still widely misunderstood and far less available, though the need for it is large and growing.  How are hospice care and palliative care defined – how do they overlap, and how are they different?

Hospice Care

Hospice care is designed for seriously ill people whose illness is not responding to treatment, or who have decided not to undergo further treatment for a life-limiting illness.  Hospice provides care and support for the patient and family, but the patient will not receive treatment intended to cure or slow the progress of their disease.

Hospice is usually chosen when a patient’s doctor believes that the patient has six months or less to live.  Ironically, it can happen that a patient in hospice lives longer than they would have, had they continued to be treated.   

A patient in hospice care may still receive treatments for some medical conditions, if it is helpful.  For example, cancer chemotherapy that is no longer working may stop, but if the patient has high blood pressure, he or she may still be treated for that.

Fortunately, paying for hospice care need not be a concern.  According to the NY State Department of Health, “[Hospice] is available through Medicaid, Medicare, private payment, and some health insurers to persons who have a medical prognosis of six or fewer months to live if the terminal illness runs its normal course.”

Any person with a serious illness, especially if they are older, frail, or in poor health, should discuss hospice options with their doctor.  Many people refuse hospice for too long, and don’t take advantage of the far better quality of life that hospice services are designed to provide.  Starting hospice services sooner rather than later can end up providing months of quality time with family, and a calmer, more peaceful end.

Because it is clear that Medicare and Medicaid pay for hospice services, there are numerous providers of this type of care. 

Palliative care

The goal of palliative care is to maximize the quality of life of someone living with a serious illness such as congestive heart failure (CHF), chronic obstructive pulmonary disease (COPD), cancer or dementia, but who has not necessarily been diagnosed as being terminally ill.  Patients who are receiving palliative care may be treated to alleviate the symptoms of their illness, and they may also receive treatment intended to cure their condition or prolong their life.

The sooner someone with a serious illness seeks palliative care, the more effective it can be.  Anyone with serious discomfort and disability in their later years can benefit.

Palliative care’s benefits are not limited to helping to manage the symptoms of the person’s condition, and to improving their quality of life.  Establishing communication about the ongoing treatment of their illness can help patients to better understand their options moving forward, if their condition deteriorates.  Ongoing discussions can help them to be more proactive and confident about their decisions about treatment.

Palliative care is provided by a variety of health professionals, depending upon the needs of the patient.  In addition to medical needs, as with hospice care, a patient might benefit from social, emotional or practical support.  Doctors, nurses, social workers, and chaplains may be involved.  Palliative care is still a relatively new concept, so many doctors do not proactively refer patients.  A patient may request a referral for palliative care services.

Who pays for Palliative Care?

According to the website of MJHS health system, “If you have Medicare Part B (medical insurance), it may cover some medications and treatments that provide palliative care, including visits from doctors, nurse practitioners and social workers. If you are covered by Medicaid, ... it may cover some palliative care treatments and medications, including visits from doctors. Medicaid does not use the term ‘palliative,’ so standard Medicaid benefits provide coverage."

The website says further, "Many private health insurance plans provide some coverage for palliative care as part of their hospice or chronic care benefits. If you own a long-term care policy, there may be palliative care benefits provided by that policy. Check with your health insurance or long-term care insurance representative.”

A long-term care policy issued ten or more years ago may not cover palliative care, as it didn’t exist as a stand-alone service until recently.  You will need to check with your Medicare or Medicaid provider to determine what is covered. 

There are not a large number of palliative care providers at this time.  Numerous of the providers listed in Google under “palliative care” in the NYC Metro area provide only hospice care.  It may take some research to find an available provider.

The nonprofit National Hospice and Palliative Care Organization has created a chart that compares palliative care to hospice care.

Both hospice and palliative care services may be appropriate for someone with long-term care needs.  This may be another part of the long-term care planning process that can maximize your quality of life.  The sooner you begin to plan, the better your chances are of protecting yourself against both unnecessary medical treatments and discomfort, and against the enormous cost of long-term care.

The High Cost of Bad Long-Term Care Advice

“You need to use up all your savings before you’re eligible for Medicaid.  It’s called the ‘spend down.’”

“Your home is exempt from Community Medicaid.”

“You can transfer half your money shortly before you go into a nursing home, and then when you apply for Medicaid, the Penalty Period will be half as long.”

“You have too much income to qualify for Medicaid.”

Coming face to face with the enormous cost of long-term care can be a huge shock for seniors who need assistance.  When they begin to ask questions about how to pay for it, all too often they receive incorrect or incomplete answers from people who are not Elder Law attorneys.  Time after time we have seen potential clients who took these answers as fact, with disastrous consequences.

Sometimes the “advice” comes from nursing home personnel, or it can be nurses, hospital discharge planners, or Social Workers who are not fully informed about current Medicaid regulations.

It is disheartening to us to speak with seniors who come in seeking advice only when they are almost out of money, when our timely advice would have saved them tens of thousands of dollars – and in some cases, much, much more.

Consider a senior woman who needs long-term care, who hears from Medicaid, or from a Medicaid application service, that her mortgage-free house is exempt from being considered a resource for Community Medicaid.  Even if she did other planning, such as transferring her money to a family member or to an irrevocable trust, and then applied for Medicaid, there’s a hole in her plan as large as her entire house.

That’s because Medicaid keeps track of how much they are spending on her care.  Yes, the home is exempt – as long as it’s her primary residence, and her home equity is less than $1,033,000 in 2023.  Once she moves out for any reason (such as assisted living, nursing home, or other), or dies, then wham! – the situation changes. 

Now Medicaid can put a lien against the home, and demand reimbursement from the home equity for any amounts spent on the person’s care.  That can easily eat up every penny of her equity in the house, leaving nothing to help pay for any future care needs (for example, if she goes into an assisted living residence), and nothing for her heirs when she dies.

If she had transferred the house to a child, or had put it into an irrevocable trust, Medicaid would not be able to seek reimbursement from the home equity.  This incomplete understanding of the rules could literally cost her hundreds of thousands of dollars.

Other times, people learn that Medicaid will only provide services if a person has less than a certain – very low – amount of assets.  They hear from friends or family that they need to spend all their savings before they can apply for Medicaid.  So, they glumly use up their entire nest egg to pay for their care – when they could have protected that money.  It could have been transferred to an irrevocable trust or gifted to children or others, and remained available to supplement their care, instead of being rapidly and completely consumed by health and long-term care providers.

Income misinformation is out there as well.  Many people believe that if they have a lot of income, they won’t be eligible for Medicaid services.  This is also incorrect information.  If you’re over 65, your income is NOT a factor in determining your eligibility for Medicaid. 

However, for those who qualify for Community Medicaid benefits, Medicaid does have a monthly income limit. Any amount above the limit is called “surplus income.”

If you do not take steps to protect your “surplus,” Medicaid will require it to be contributed to the cost of your care.  Fortunately, there is an established strategy that will enable you to protect your “surplus income” and allow you to continue to use it to pay for your expenses, or goods or services you desire.

We feel terrible when we have to tell people that the huge amount of the money they spent on their care could have been saved, if only they had come to us sooner.

Elder Law planning, and creating and implementing your plan, takes a lot of legal work, and the costs can seem high.  However, the alternative – doing nothing, or doing the wrong thing – can and often does cost many multiples of the amount people would have spent on implementing a plan with an Elder Law attorney.

Our firm has always helped our clients not only to create and document a plan, but also to help them implement it.  We do not and would not recommend a plan for a potential client unless we feel that it will clearly be cost-effective for them.  We also explain the options, as it is always a client’s decision as to whether and how to proceed.

Don’t fall prey to the belief that people who deal with seniors know the ins and outs of the Medicaid program and how best to pay for long-term care.  Even if you believe your affairs and wishes are very simple, every situation, including yours, is unique, and requires its own analysis, discussion, and actions.

Do yourself the favor of having a consultation with an experienced Elder Law attorney.  Talking through your family situation, your needs, and your goals, will point to the steps you can take to protect what you’ve worked a lifetime to save.  Not doing so could cost you everything.

Significantly Increased 2023 Medicaid Income Levels Will Affect Pooled Income Trust Users

In December of 2022, the Department of Social Services (DSS) and the Human Resources Administration (HRA) sent out over 140,000 notices to Medicaid recipients with surplus income. Some of our clients received one of these notices.

The purpose of the notice was to inform the Medicaid recipients with 'surplus income' (the amount that would be required to be spent toward the cost of your care OR deposited into a Pooled Income Trust), that there was a new income limit for 2023.  The new limit significantly increased the amount of income which Medicaid recipients are permitted to keep in their personal accounts before making any contributions to a Pooled Income Trust.

The income limit for a household with one recipient in 2022 was $934. In December 2022, it was announced that the 2023 income limit would increase to $1,563.  Then unexpectedly, in mid-February 2023, it was increased again, to $1,677.  We have not previously seen an increase this large.

Currently, people who are using a Pooled Income Trust have two options. The first option is to continue to make monthly deposits to your Pooled Income Trust in accordance with last year’s income limits. At the time of your next renewal date, your surplus income will be recalculated using the new figures.

The second option is to request a recalculation of your income and initiate a budget review. If you choose to recalculate your income, you may be able to significantly reduce the amount of funds you deposit monthly into your Pooled Income Trust, or you may be able to eliminate the need for a Pooled Income Trust altogether.

If your renewal date is within the next several months, it probably does not make sense to request a budget review.  By the time it is completed, your renewal date may already have passed.  If your renewal date is farther away, it is in your interest to request a review, because it will mean you can keep more of your income in your own personal name, to spend on yourself or others in whatever manner you choose.

Lamson & Cutner, P.C. is available to complete your renewal applications and/or budget review requests. If you would like to engage us for this work, we recommend that you contact us soon. DSS and HRA will be receiving thousands of renewal requests, and we would like to submit the requests for our clients as soon as possible and hopefully get you to the front of the line.

Unexpected News Flash - INCREASED NY Medicaid 2023 Threshold Figures Have Been Released

2023 Updated Quick Reference Chart for New York Medicaid Levels

On February 14, 2023, New York's Medicaid office released new relevant figures for 2023.

Our Updated Quick Reference Chart shows the most important threshold levels.

Key Information:

These changes will affect people who deposit money into a Pooled Income Trust account each month.  More information will be posted soon.

Click on the link below for a printable version of the chart:

Updated Medicaid-Quick-Reference-Chart-2023

Retirement Accounts and Medicaid

If you are over 65 years of age, need health care or long-term care, and hope to  receive Medicaid benefits, Medicaid will determine your financial eligibility by first calculating the amount of your total “resources,” as defined by them.  Your resources include real estate and monetary assets that are titled in your name, such as savings accounts, checking accounts, and investment accounts, plus any insurance that has a cash value.

Only if you have very little in total resources (please refer to our Quick Reference Chart for the current level) are you financially eligible for Medicaid.  Medicaid usually increases this amount slightly every year.  But what about retirement accounts?  How are IRAs, Keoghs, 401(k)s and other qualified retirement plans  treated?  They are  monetary assets, and therefore  countable resources, aren’t they?  Under certain circumstances, the answer can be “no,” and the principal amount in the retirement account will not be considered a resource for determining Medicaid eligibility.  For a qualified retirement account NOT to be counted as a resource,  it must be in “payout status.”

What does “payout status” mean?

The laws governing retirement accounts require that you start taking periodic payments  from your qualified retirement account the year you turn  age 73.  However, you can begin withdrawals without a  penalty as early as age 59 ½.  For a retirement account to be considered in payout status  for Medicaid purposes, you must be withdrawing at least the Required Minimum Distribution amount according to Medicaid’s rules each year.

What is the Required Minimum Distribution (RMD)?

The concept of a retirement account is to provide financial support for you for the rest of your life.  Your Medicaid RMD for the current year is calculated by taking the amount  in your account on December 31st of the previous year, and dividing it by the number of additional years you are expected to live at that point, based on a life expectancy table. The life expectancy table you are required to use can differ, based on your geographic location and marital status.  The calculation itself is not difficult, but you must be sure to use the correct life expectancy table, and finding the correct one can be confusing.

The life expectancy table Medicaid requires you to use is published by Medicaid, if you live anywhere in New York State except for the five boroughs of New York City.   Within New York City, Medicaid permits you to use a different life expectancy table, one published by the IRS,  to calculate your required distributions.  When using the Medicaid tables the distributions will be greater than the RMD as determined  using the IRS table.  The Medicaid table provides for substantially shorter life expectancies and therefore higher annual distributions.  Be aware that tax and estate planning strategies for retirement accounts are different from Medicaid planning.  Medicaid is a world unto itself, and is not concerned with harmonizing its rules with IRS laws and regulations.

While Medicaid will not count the underlying retirement asset as a countable resource if the account is in payout status, it WILL count the periodic distributions as additional income.  An individual applying for Medicaid home care services can protect this income by contributing it to a Pooled Income Trust.  An individual applying for Institutional Medicaid in a nursing home must contribute this income to the nursing home each month.  Because of Medicaid’s strict income requirements, there may instances when taking a lump sum distribution in excess of the required distribution may be beneficial, despite the income tax consequences of such a distribution.  In other instances it may not make sense to take any distributions greater than what is required.

Examples of how to calculate the distribution amounts from retirement accounts  for Medicaid purposes are given below, one for New York City and one for outside the five boroughs.

First example:  you are a 72 year old woman who lives in Queens and you are applying for Medicaid.  You need to start making distributions from your IRA, which totaled $120,000 on December 31st of the previous year.  The New York City Human Resources Administration allows the use of the IRS life expectancy table, which provides a life expectancy of  27.4 years.  For that year only, your RMD is $120,000 divided by 27.4, or $4,380.  Let’s say the next year your IRA has grown by 4%, from $115,620 to $120,250.  Now you are 73 years old and the IRS table provides a life expectancy of 26.5 years.  So your annual RMD is $120,250 divided by 26.5, or $4,538.  Medicaid will divide the annual RMD into 12 monthly installments of $378.17, which they will include in your monthly income computation along with your other sources of income.

Second example:  your twin sister lives in Westchester County, is also applying for Medicaid, and has an identical amount in her IRA, $120,000.  The life expectancy table that is required by the Departments of Social Services throughout most of New York State estimates that she will live another 15.25 years (She may want to move to New York City, where somehow magically she is expected to live much longer!).  For that year, the amount that must be distributed  to her as a Westchester County resident for her retirement account to be considered in “payout status” is $120,000 divided by 15.25, or $7,869.  Assume the next year her IRA has grown by 4%, like yours did; now it is $116,616.  Now that she is 73, the Medicaid table shows a life expectancy of 14.52 more years.  Medicaid will require that her distribution for that year is $116,616 divided by 14.52, or $8,031.  When divided into 12 monthly installments she will have an additional $669.28 of monthly income.  You can see that the IRA will be depleted at a significantly faster rate when using the Medicaid table.

Each year you and your twin sister must continue to withdraw from your accounts at least the RMD, as calculated under the life expectancy table  that is used in your county.  The distribution will be added to your monthly income, but if you do not take these periodic payments, the entire underlying amount in your retirement accounts will be counted as a “resource,” and you will likely not be eligible for Medicaid.

But the bottom line is that you CAN have a significant amount of assets in a retirement account, and still be eligible for Medicaid, as long as you are withdrawing from your retirement account in the right way and in the right amounts.  If you are intending to apply for Medicaid, you will want to consult with your Elder Law attorney to make sure that your retirement accounts are handled properly and in the most advantageous way.